Posted on July 2nd, 2009 by Derek Bambauer
Posted on July 2nd, 2009 by William McGeveran
A federal judge has set aside last fall’s convictions of Lori Drew on misdemeanor criminal charges arising from the cyberbullying and resulting suicide of Missouri teenager Megan Meier. Given the awful consequences of the nasty hoax against Meier, it is hard to exactly celebrate. But I did sign an amicus brief arguing that the prosecution stretched the Computer Fraud and Abuse Act well beyond acceptable boundaries, setting an alarming precedent. Apparently that’s exactly what the judge ruled (a written decision is expected next week). As I did before when I wrote about this, I will just quote Justice Oliver Wendell Holmes:
Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting).
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Filed under: Computer crime, Court Decisions, Intermediaries, Internet & Society, Privacy, Social Networking, Virtual Worlds
Posted on July 2nd, 2009 by William McGeveran
As I hole up in my ivory tower writing about trademark fair use reform this summer, it’s nice to know that the issue might matter in the outside world. In a pair of signs yesterday, I ran across two different news articles showing how seriously our overbroad trademark rights are constraining free expression.
First, while waiting for my coffee to brew in the faculty lounge, my eye fell upon a front-page article [limited nonsubscriber access] in the Chronicle of Higher Education from last week that was lying on the table. An hour later, back at my desk, I stumbled upon this story in yesterday’s New York Times online. Both articles demonstrate that we have a serious problem — and both of them reported, as simple matters of fact, the wrong-headed legal interpretations that allow trademark-based censorship of film and television.
The Chronicle story explained how colleges and universities exercise control over the scripts of movies and television programs to ensure flattering fictional portrayals of their institutions. The author recounts how, for example, NYU “balked at racy plot lines” in the old TV teen soap Felicity, so the character instead enrolled at a fictional school very similar to NYU. In some cases, schools impose content restrictions as a condition for filming on campus (in addition to the thousands of dollars in rental fees they collect). That may be reasonable. But the main weapon the schools use is the assertion of expansive trademark rights in their names. The key passage from the article, with my emphases added:
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Filed under: First Amendment, Intermediaries, Media, Scholarship, Trademarks
Posted on June 29th, 2009 by William McGeveran
Most commentary about the Supreme Court today surely will focus on the controversial Ricci employment discrimination case and its impact on Judge Sotomayor’s confirmation hearings. But the Court also announced two important orders in Info/Law, both concerning decisions that it will not make. By refusing to grant cert. in these cases, the Court lets two very good appellate rulings remain in force.
First, the Court denied cert. in IMS Health v. Ayotte. This case involved data miners’ First Amendment challenge to a New Hampshire law that prohibits the transfer of physicians’ prescribing records for use by pharmaceutical company representatives in their efforts to promote certain drugs to individual doctors. The First Circuit’s thorough decision in the case upheld the law on two distinct grounds: the transfer of the records was conduct rather than speech; and anyway if it was commercial speech the law satisfied the narrow tailoring requirements of the Central Hudson test. There is somewhat mixed case law on the First Amendment status of data mining, but I think the pro-privacy side is winning overall. (For more on this complex topic, see Neil Richards’ great law review article). While it might have been nice if the Supreme Court took the case and delivered the death blow to data miners’ constitutional arguments, that would have been very risky; it is better to leave Judge Selya’s strong opinion — and New Hampshire’s law, imitated by some other states — in place. (EPIC has more information on this one.)
The second decision is close to my co-blogger Tim’s heart, as he has described before. The Supreme Court refused to review the Second Circuit’s opinion finding that Cablevision’s proposed new DVR system does not violate copyright law. (Public Knowledge has more discussion on this one.)
(And by the way, if you share my side interest in election law, today’s announcement that the Court will hear more arguments in the campaign finance case about the Hillary Clinton documentary rather than deciding it — and consider much broader issues about corporate political donations — is also a bombshell. Probably a very bad sign for advocates of campaign finance regulation. Lots of big news other than Ricci today!)
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Filed under: Copyright, Court Decisions, First Amendment, Media, Privacy, Voting
Posted on June 25th, 2009 by William McGeveran
Cyberprof Michael Risch has posted some interesting thoughts on the emerging complexity of Section 230. We’ve talked about this provision on the blog many times before. And Mark Lemley wrote a good paper on it a while back. The provision pretty much immunizes web sites and other internet providers from liability for a host of legal infractions arising from user-generated content, including defamation and invasion of privacy. While some cases are pretty simple, now we are seeing more complex situations arising.
Among the newest is the recent lawsuit filed by St. Louis Cardinals manager Tony LaRussa against Twitter. A user who claimed to be LaRussa opened a Twitter account in his name and said some nasty things, including mocking references to the deaths of two Cardinals pitchers. Twitter denied initial reports that the suit had been settled in a somewhat bellicose blog post (remember, lawyers: it isn’t a settlement until the other guy’s client signs off). Twitter then removed the case (that is, transferred it) from state to federal court, where it currently remains active on the docket of the Northern District of California. (The best news coverage is here and here.) The phony LaRussa account was terminated long ago; impersonation violates Twitter’s terms of service.
LaRussa’s actual grievances sound like they should give rise to defamation or false light, or perhaps the appropriation tort. But these would all be blocked, quite routinely, by section 230. Of course, LaRussa could go after the individual impostor, assuming that person could be found. Instead, his lawyers framed much of his complaint in terms of trademark infringement. Why? It’s no coincidence that section 230(d) carves out IP (along with criminal law) from the special immunity, stating, “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”
But to prevail on the trademark infringement claim, LaRussa has to prove that the phony account was likely to confuse consumers into thinking he endorsed Twitter, thus harming him. That is why his complaint emphasizes:
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Filed under: Anonymity, Digital Media, First Amendment, Intermediaries, Internet & Society, Privacy, Social Networking, Trademarks
Posted on June 25th, 2009 by Derek Bambauer
One beneficial side effect of Internet filtering is that it points up quirks in how countries make content decisions: what’s blacklisted, and why? The Sydney Morning Herald reports that Australia’s proposed Internet censorship system (currently in its second phase of testing) will block access to on-line and downloadable games that aren’t MA-15 or milder. This is due to a sharp break in the rating scale Australia uses to rate games: they’re either MA15+ or below, or they’re Refused Classification. The black list of sites to be filtered on a mandatory basis is, at the moment, restricted to RC material. So, you can have a magazine that’s R18 and buy it if you’re an adult, but you can’t play a game that would earn the equivalent rating.
This might be useful in getting Australia to reform its content classification system, which has some weird dichotomies in evaluating on-line vs. off-line material, and in dealing with different media for the same content. This particular quirk, though, seems like it’s vulnerable to gamesmanship: if I were an Australian gaming company, I’d surely submit complaints about my competitors’ games (especially foreign ones) - censorship could help my sales by eliminating alternatives.
Fun stuff. Hat tip to Boing Boing.
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Filed under: Blogging, Digital Media, Filtering, ISP, Intermediaries, Internet & Society, Media, Software, Virtual Worlds, international
Posted on June 24th, 2009 by Tim Armstrong
One of the many interesting presentations I attended at the just-concluded 2009 CALI Conference was a tag-team primer on creating digital statute books and casebooks. Now, I see that one of the presenters, Professor Steve Bradford of the University of Nebraska–Lincoln, has posted on SSRN the paper he discussed at CALI. Here’s the pithy abstract:
Law students spend hundreds of thousands of dollars each year on statute books or statutory supplements for their courses. These statutory supplements, notorious for their weight and bulkiness, are compilations of subject-specific statutes and regulations, most of which are publicly available at no charge. This article discusses the advantages of digital statute books, details how the authors created a digital statute book that was used in two securities regulation courses, and evaluates the result of that experiment.
In brief, Professor Bradford created a downloadable PDF copy of the statutes and regulations needed for his Securities Regulation class. It’s a massive document, over 2,400 pages, enough to give any law student severe spine problems if they printed it out and carried around in their backpack. But of course, the point of the statute book being digital is that you don’t have to do that. Furthermore, Bradford made it possible to highlight and annotate the document in Acrobat Reader. If you’re interested in seeing it, you can download the whole thing from Bradford’s class page.
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Filed under: Books, Digital Media, Education & Copyright, Internet & Society, Law School, Open Access
Posted on June 22nd, 2009 by Derek Bambauer
Iranian demonstrators protesting the recent election results (which look dicey) - and their opponents - are using networked technologies to communicate and organize, including Twitter, blogs, SMS, and the like. John Palfrey, Rob Faris, and Bruce Etling point out, though, that these capabilities, while empowering, won’t carry the day. Whether the demonstrations succeed depends on old-fashioned courage, strategy, and leadership. And Ethan Zuckerman notes (his “cute cat theory“) that Twitter’s success results in large measure from its multi-purpose nature - its generativity, in JZ’s phrase - which makes it less appealing for authoritarian states (= Iran) to block. We’re seeing the psychological power of Web 2.0 in the video, taken on a cell phone, of the shooting of a young woman (likely by a pro-government militia), and its subsequent, viral distribution. Finally, the mainstream media - Media 1.0 - is employing these new technologies since shoe leather journalism has been banned by Iran’s government. It’s a fascinating test case in how professional journalists can use the tools of us amateurs. Less is more, sometimes.
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Filed under: Berkman, Blogging, Digital Media, Filtering, Intermediaries, Internet & Society, Media, Peer Production, Scholarship, Social Networking, Software, Video, Voting, international
Posted on June 19th, 2009 by Tim Armstrong
I delivered my “Crowdsourcing and Open Access” presentation earlier today at CALICon09. A huge thank-you to all who attended; I learned a good deal from the comments and questions (as always happens at these things) and it was a very enjoyable experience. I spent a good part of the presentation talking about how crowdsourced proofreading can improve the quality of scanned source texts, with a couple of illustrative examples drawn from the Wikisource web site.
There are plenty of sites in the world that aim to serve as repositories for legal scholarship. Some of them are run by particular law schools and serve to advertise scholarship produced by that institution’s faculty. Others, like SSRN, aggregate scholarship from a variety of sources. Wikisource differs from all of them in that its mission is broader: Wikisource doesn’t want to be a scholarly archive, it wants to be a library. The very breadth and generality of that objective, however, gives Wikisource some advantages as an open-access repository that I don’t think have been adequately explored elsewhere.
To illustrate the point, I put my recent piece on the DMCA up on Wikisource. Here it is: Fair Circumvention, 74 Brook. L. Rev. 1 (2008). The Wikisource version, I think, improves in a number of interesting ways over the PDF version available at SSRN.
- It includes the full text of the article, searchable, indexable, and cut-and-pasteable, on a single web page. All of which makes the article more useable and easier to find by people (including legal generalists, who might not be acquainted with SSRN) who are doing research in this area. The text is indexed by Google.
- Wikilinks to primary source materials make it easy to verify the research. If I have mischaracterized, say, the (in)famous Universal City Studios v. Reimerdes DeCSS case, you can find out easily, because Reimerdes is also on Wikisource, just a click away. Most of the statutes cited in the piece are available, too. As more primary source authorities are added to the site, the number of links from the article can also grow. Those primary source materials would be excluded from a site that aspired only to archive research; their easy accessibility on Wikisource, in contrast, makes the research better.
- Easy authentication and pinpoint citation because the original page scans from the published version are preserved alongside the the digitized text, just a click away using the page number links that appear in the left-hand margin of the site. (The page numbers are anchors, too, making it easy to create external links that point directly to a particular page of the article—for example, here’s p. 5).
Doing it this way entails a little extra effort, although as I tried to illustrate during my CALI talk, a certain amount of that effort can be crowdsourced. There is also a legal issue involved in ensuring that the applicable license permits the work to be hosted on Wikisource. Still, as a proof of concept, I think using Wikisource as a legal scholarship repository holds some interesting possibilities. Would be happy to hear any feedback.
UPDATE: Peter Suber points out that some open-access journals in the field of medicine are already experimenting with offering wiki versions of their articles alongside the published PDFs. An idea whose time has come for legal scholarship as well? Perhaps one of the OALP journals should experiment with this.
UPDATE #2: Thanks for the shout-outs from All the Modern Things and Et Seq.
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Filed under: Copyright, Law School, Open Access, Peer Production, Scholarship, Search Engines
Posted on June 18th, 2009 by Tim Armstrong
Last year, the trial judge who presided over the trial of accused file-sharer Jammie Thomas suggested that the jury’s award of $222,000 in statutory damages in the first trial may have been excessive.
So it’s interesting to speculate what the judge might make of the damages a jury just awarded to the record label plaintiffs in the Jammie Thomas retrial: $1.92 million — more than 8 times the amount awarded in the first trial, or $80,000 (based on the jury’s finding of willfulness) for each of the 24 works Thomas infringed. Remittitur motion, anyone?
With a seemingly impecunious litigant like Thomas, it probably makes little difference whether the jury awarded $1,920,000, or $222,000, or “a bazillion kajillion dollars”; I know of nobody who seriously expects the record labels to see more than a tiny fraction of the recompense from Thomas they claim they are owed. And, as I’ve noted before, if you want to campaign for reducing the maximum statutory damage awards for copyright infringement, Thomas is probably not the most sympathetic candidate to make that argument.
It’s certainly an extraordinary number, however, and it just shows how quickly individual acts of file-sharing can pile up into multi-million-dollar liability under current law.
UPDATE: EFF’s Fred von Lohmann ably tees up the constitutional excessiveness issue also raised by Derek following my earlier post. Not a topic upon which I feel qualified to opine, but see Fred’s post and judge for yourself.
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Filed under: Copyright, Court Decisions, Digital Media, Internet & Society, Media, Minnesota, Music, RIAA